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2015 (11) TMI 1813
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.... of Debts Recovery Tribunal (hereinafter referred to as "DRT") at Bangalore. The appeal was filed on the strength of the power of attorney executed by Sri.K.Anand, the appellant who lost the original application before the DRT, Bangalore. 3. The DRAT, Chennai by its order dated 15 April 2015 rejected the plea made by the petitioner to argue the appeal on behalf of his principal. Feeling aggrieved, the petitioner has come up with this writ petition. 4. The power agent, who is not a legal practitioner wanted to argue the writ petition on the strength of the power of attorney. The learned counsel for the Bank opposed the prayer and made a request to decide his objection at the first instance. We therefore heard the power agent in person for the limited purpose of deciding the preliminary objection. We have also heard the learned counsel for the Bank, the second respondent in the writ petition. The Legal Framework:- 5. The Advocates Act 1961 (hereinafter referred to as "the Act") is a comprehensive legislation consolidating the law relating to legal practitioners. (a) Section 2(a) of the Act defines the term "Advocates". As per the definition, Advocate means an Advocate ent....
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....t and more particularly Sections 29 and 33 would prevail over Rules 1 and 2 of Order III of the Code of Civil Procedure. 8. The right conferred under Rules 1 and 2 of Order III on a person holding a power of attorney to appear before the Court and plead on behalf of his principal in a representative capacity has nothing to do with the right to practice in Court. There is a clear distinction between "appear" and "practice". The legislature while permitting non advocates to appear with the permission of Court consciously used the word "appear" in Section 32 of the Act. Section 33 of the Act used the word "practice" which would include acting and pleading. 9. Section 2(15) of the Code of Civil Procedure defines a pleader as a person entitled to appear and plead for another in Courts, and includes an Advocate, a vakil and an attorney of a High Court. There is a vital difference between a recognised agent and a pleader. Sections 29, 32 and 33 of the Act if considered in the light of Rules 1 and 2 of Order III of Code of Civil Procedure would make the legal position clear that only an advocate enrolled under the Advocates Act and having his name on the rolls of a Bar Council alone is e....
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....ns. If such be the keynote thought for the very survival of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon his probity and professional lifestyle. Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation. Canons of conduct cannot be crystallised into rigid rules but felt by the collective conscience of the practitioners as right." 15. The question whether an agent with a power of attorney to appear and conduct judicial proceeding has the right of audience in Court came up for consideration before a Full Bench of this Court in Thayarammal v. Pitty Kuppusamy Naidu (1937) 2 MLJ 552. The Full Bench considered the earlier decisions on the point and held that Rule 1 and 2 of Order III of ....
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....to withdraw it half way through if the representative proves himself reprehensible. The Supreme Court sounded a word of caution that the antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission. The Supreme Court further said: 2. Advocates are entitled, as of right, to practise in this Court [Section 30(i) of the Advocates Act, 1961]. But, this privilege cannot be claimed, as of right, by anyone else. While it is true that Article 19 of the Constitution guarantees the freedom to practise any profession, it is open to the State to make a law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right. The Advocates Act, by Section 29, provides for such a reasonable restriction, namely, that the only class of persons entitled to practise the profession of law shall be advocates. Even so, is it not open to a party who is unable for some reason or other to present his case adequately to seek the help of another person in this behalf? To negative such a plea may be to deny justice altogether in certain cases....
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.... Justice may fail if a knave were to represent a party. Judges may suffer if quarrelsome, ill-informed or blackguardly or blockheadly private representatives fling arguments at the court. Likewise, the party himself may suffer if his private representative deceives him or destroys his case by mendacious or meaningless submissions and with no responsibility or respect for the court. Other situations, settings and disqualifications may be conceived of where grant of permission for a private person to represent another may be obstructive, even destructive of justice. Indeed, the Bar is an extension of the system of justice; an advocate is an officer of court. He is master of an expertise but more than that, accountable to the court and governed by a high ethic. The success of the judicial process often depends on the services of the legal profession." 19. The Supreme Court in T.C.Mathai v. District and Sessions Judge (1999) 3 SCC 614 in the context of Section 2(q) of the Criminal Procedure Code held that in the adversarial system which is now being followed in India, both in Civil and Criminal litigation, it is very necessary that the Court gets proper assistance from both sides. &n....
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....nder Section 32 of the Act, though of course he may sign sale deeds, agreements, etc. and do other acts on behalf of someone else, unless prohibited by law. 22 (a) The petitioner placed reliance on the decision of Supreme Court in C.Venkatachalam vs. Ajithkumar C.Shah and others4, in support of his contention that non advocates are permitted to appear before the Tribunals. (b) In C.Venkatachalam, the Supreme Court considered the provisions of the Consumer Protection Act and held that when the legislature has permitted the authorized agents to appear on behalf of the complainant, then the Courts cannot compel the consumer to engage the services of an advocate. The said judgment was with reference to the Consumer Protection Act. The legislature has given an option to the parties before the consumer forums to either personally appear or be represented by an "authorized agent" or by an advocate. (c) We are not presently dealing with the issue as to whether a person is entitled to appear before the Debts Recovery Tribunal or Debts Recovery Appellate Tribunal on the basis of power of attorney. Here the issue is whether the petitioner, in his capacity as power agent, is entitled to add....